SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A- 6843-96T3
WILLIAM G. MULLIGAN FOUNDATION
FOR THE CONTROL OF FIRST AID
SQUADDERS AND ROVING
PARAMEDICS, a New Jersey
Nonprofit Corporation,
Plaintiff-Appellant,
v.
THOMAS S. BROOKS, KEVIN M. HAHN,
SHARON L. FREEMAN, WILLIAM HERPICH,
EDWARD NIEDZINSKI, SCOTT M. MINTER,
LOUIS P. BONA, ART HORNUNG, AND
FRANK J. VANORE, Individually and
as Trustees on the Board of
Trustees of the Panther Valley Property
Owners Association,
Defendants-Respondents.
_________________________________________________________________
Argued February 24, 1998 - Decided June 25, 1998
Before Judges Stern, Kleiner and Kimmelman.
On appeal from the Superior Court of New
Jersey, Law Division, Warren County.
Frank Askin argued the cause for appellant
(Mulligan & Mulligan, attorneys; Mr. Askin,
Special Counsel and on the briefs).
Marilyn S. Silvia argued the cause for
respondents (Hill Wallack, attorneys; Ms.
Silvia, on the brief).
The opinion of the court was delivered by
STERN, J.A.D.
Plaintiff appeals from the grant of summary judgment
dismissing its complaint seeking to compel defendants, the
trustees of the Panther Valley Property Owners Association
(PVPOA), to publish plaintiff's advertisement in defendants'
newsletter, The Panther. Plaintiff claims that defendants
violated its right of free speech guaranteed under the New Jersey
Constitution by refusing to accept its advertisement for
publication. Plaintiff also claims that defendant owed
plaintiff's founder and trustee, Elinor Mulligan, a fiduciary
duty to publish the advertisement.
The essential facts are not in dispute. Because of the nature of defendants' summary judgment motion,See footnote 1 plaintiff is entitled to "all the favorable inferences," Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), and we adopt for present purposes its version of the facts:
Panther Valley is a private, gated community of some 1,200 individual households and a population of some 4,000 persons. It covers approximately 1,500 acres in Allamuchy Township in Warren County. All Panther Valley property owners are members of the Panther Valley Property Owners Association (PVPOA), which is governed by a 9-member Board of Trustees elected by the members.
For many years, the PVPOA has published a monthly newsletter called The Panther, which identifies itself as "The Official Communication Medium of the Panther Valley Community." The Panther "serves as a
community bulletin board and is mailed free
of charge to Panther Valley residents," and
has no other distribution. Since PVPOA rules
and regulations forbid "soliciting of any
kind within Panther Valley", The Panther is
the only effective means of communication
among all residents of the community.
The only written guidelines governing
publication of materials in The Panther are
guidelines for letters to "The Mailbox",
instituted in mid-1996, which are actually
"letters to the editors". Those letters are
subject to numerous restrictions including no
more than 250 words; they must be signed
using full name, address and phone number;
the Communications Committee will select
letters for publication; and selection will
be based upon "relevance, timeliness and
constructiveness."
The Panther accepts paid advertising and
has a rate chart for such ads. There are no
regulations or guidelines governing the
content of advertising. Publication of The
Panther is supervised by an editor and
Communications Committee appointed by and
answerable to the Board of Trustees, with the
assistance of a professional staff member
employed by the PVPOA.
Elinor Mulligan is a resident of Panther Valley, and has been since 1972, and is a member in good standing of the PVPOA. She happens to be an attorney, and her law firm regularly advertises in The Panther. Ms. Mulligan is also the founder and incorporator of the William G. Mulligan Foundation for the Control of First Aid Squadders and Roving Paramedics (Plaintiff and hereinafter "Mulligan Foundation") of which she serves as one of the three trustees. The Foundation was organized for certain stated purposes including the promotion and advancement of public knowledge of the rights and privileges granted by law to volunteer first aid and rescue squads and their members and to salaried paramedics. As a consequence of an unfortunate incident in 1991 following the death of Ms. Mulligan's husband, Ms. Mulligan had filed suit against the Allamuchy-Green First Aid Squad (hereinafter "AGFAS") and the
paramedics the squad called to Ms. Mulligan's
home at that time. The lawsuit was an effort
to clarify the legal rights and obligations
of such persons. The case was entitled
Mulligan v. Allamuchy-Green First Aid Squad,
et al.. The summary judgment granted all
defendants by the Superior Court confirming
the extensive immunity of first aid squads
and their members under New Jersey law was
then affirmed by the Appellate Division in an
unreported opinion (App. Div. A-6801-94T1)
and certification was denied.
The Panther regularly prints materials
favorable to the AGFAS urging PVPOA members
to join and contribute to the squad and to
call upon it for services. And, the June
1996 issue of The Panther contained an
article under the heading "Good Judgment"
which favorably reported that the dismissal
of Ms. Mulligan's suit against the AGFAS had
been upheld by the Appellate Division. All
of these materials including the
aforedescribed article were printed in The
Panther without any charge to AGFAS.
On January 15, 1997, on behalf of the
Mulligan Foundation, Ms. Mulligan submitted
an advertisement to be placed in the February
issue of The Panther explaining the legal
rights and privileges of first aid squads
such as the AGFAS and of salaried paramedics
which had been confirmed by the state courts
as a result of the Mulligan case. The
submission used the same "True-False" format
of some of the AGFAS published submissions
and was accompanied by a check in full
payment for the ad.
By telephone on January 17, confirmed by a letter dated January 17 from defendant Scott Minter, as chairman of the PVPOA Communications Committee, Ms. Mulligan was informed that her ad had been rejected for publication. The ground[s] stated for rejection was that "it appears to be more of an editorial than an advertisement." A subsequent letter dated February 10, also signed by Mr. Minter, stated that "it would be more appropriate to print your copy in the `Mailbox' column as an editorial piece," but went on to say that such a submission would
have to be substantially edited to eliminate
certain "negative comments". Mr. Minter
further advised Ms. Mulligan that any
submission to the "Mailbox" would have to be
of a "constructive nature" which he explained
meant "it does not contain negative or
pejorative statements or allusions about
individuals, provides suggested solutions for
perceived problems, etc." Ms. Hauschild
later explained that it was her opinion that
the proposed advertisement was "unpleasant
and inappropriate", but conceded that was an
ad hoc determination unguided by any rules or
guidelines of the PVPOA or the newsletter.
This suit followed, seeking an Order
prohibiting defendants PVPOA Trustees from
refusing publication of Plaintiff's ad in The
Panther. (Citations omitted.)
Defendants dispute only plaintiff's claim that its ad was
"rejected" and that defendants acted in an "arbitrary" manner.
Defendants insist they "agreed to publish Mrs. Mulligan's
`opinions' about the Rescue Squad" and "asked only that the `ad'
comply with guidelines adopted for editorial comment and delete
references which would identify specific individuals due to the
notoriety generated by the prior litigation between Mrs. Mulligan
and the Rescue Squad."
Plaintiff argues that defendants violated the free speech provision of the New Jersey Constitution by refusing to accept the advertisement for publication. It claims that the action of the trustees impermissibly turned Panther Valley into a "political isolation booth," in which only one side of a public issue could be heard. Defendants claim that as a private entity
that has not invited any public participation, it does not have
to allow plaintiff to speak on its property.
In his decision, the motion judge noted that the First
Amendment does not "protect rights of speech and assembly against
interference or impairment by private individuals." He said that
the amendment poses no limitations upon the owner of private
property used nondiscriminatorily for private purpose only, even
though such use may trench upon the speech and assembly
activities of other persons." The judge performed an analysis
under the test set forth in State v. Schmid,
84 N.J. 535 (1980),
appeal dismissed, sub nom. Princeton Univ. v. Schmid,
455 U.S. 100,
102 S. Ct. 867,
70 L. Ed.2d 855 (1982), and concluded under
the New Jersey Constitution that the PVPOA "in publishing the
Panther has a right to refuse to publish ads that it feels are
not advertisements but are more editorial in content than
advertisements."
Before us, plaintiff concedes "that if the First Amendment's
definition of press is broad enough to encompass such a private
community association's newsletter, defendants' federal rights
are superior to plaintiffs' rights under the New Jersey
Constitution." Stated differently, plaintiff concedes that if
The Panther is "the press," plaintiff cannot prevail given the
First Amendment protections enjoyed by "the press." However,
plaintiff claims that the publishers and editors of The Panther
do not constitute "the press" in the constitutional sense, but
rather are merely "fiduciaries with an obligation to manage a
community resource." Plaintiff therefore insists that the New
Jersey Constitution requires that defendants publish its
submission. Defendants point out that N.J. Const. art. I, ¶ 6,
also guarantees freedom of "the press" and claim, without
citation, that "neither the United States nor the New Jersey
Constitution has been construed to limit First Amendment
protections to the `press' as defined by implication by the
plaintiff."
We will assume, as do the parties before us, that plaintiff
is correct and that this case, involving a private homeowner
association monthly newsletter to its residents, does not involve
freedom of the "press," as that term is used in either the First
Amendment to the federal Constitution or N.J. Const. art. I, ¶
6.See footnote 2 As such, we conclude that defendants are protected under the
State Constitution which guarantees the right to acquire, possess
and protect private property. N.J. Const. art. I, ¶ 1; see also
N.J. Const. art. I, ¶ 20.See footnote 3
Art. I, ¶ 6, of our State Constitution provides that:
Every person may freely speak, write and
publish his sentiments on all subjects, being
responsible for the abuse of that right. No
law shall be passed to restrain or abridge
the liberty of speech or of the press.
N.J. Const., art. I, ¶ 18, also guarantees the right of assembly.
As a result, our Supreme Court has concluded that
the State Constitution furnishes to
individuals the complementary freedoms of
speech and assembly and protects the
reasonable exercise of those rights. These
guarantees extend directly to governmental
entities as well as to persons exercising
governmental powers. They are also available
against unreasonably restrictive or
oppressive conduct on the part of private
entities that have otherwise assumed a
constitutional obligation not to abridge the
individual exercise of such freedoms because
of the public use of their property.
[State v. Schmid, 84 N.J. at 560 (1980)
(emphasis added).]
In Schmid, the Court held that Princeton University, though
a private institution, could not evict defendant or prosecute him
as a trespasser while he was endeavoring to distribute political
literature on campus.See footnote 4 In so holding, the Court recognized the
need to "achieve the optimal balance between the protections to
be accorded private property and those to be given to
expressional freedoms exercised upon such property." Id. at 562.
In balancing the rights of speech and assembly upon private
property and the extent to which such property owners can
reasonably restrict those rights, the Court adopted a three-part
test which requires consideration of 1) the nature, purpose, and
primary use of such private property, 2) the extent and nature of
the public's invitation to use that property, and 3) the purpose
of the expressional activity undertaken upon such property in
relation to both the private and public use of the property. Id.
at 563. Even when an owner of private property is
constitutionally obligated to honor speech and assembly rights of
others, the owner is entitled to fashion reasonable rules and
regulations to control the time, mode, opportunity and site for
the individual exercise of expressional rights on the property.
Ibid. In this regard, consideration must also be given to
whether there exists convenient and feasible alternative means to
individuals to engage in substantially the same expressional
activity. Ibid.
In Bellemead Dev. Corp. v. Schneider,
196 N.J. Super. 571,
574 (App. Div. 1984), certif. denied,
101 N.J. 210 (1985), we
stated that the Schmid framework of analysis requires "an initial
determination of whether the owner has devoted [the] property to
some public use." In Bellemead, the owner of five office
buildings in the Meadowlands Corporate Center was not compelled
"to admit a union organizer on [its] properties to distribute
leaflets to office workers at building entrances adjacent to
employee parking lots." We held that because plaintiffs had not
devoted their property to any public use, the three-part Schmid
test need not be considered. Id. at 575.
In State v. Brown,
212 N.J. Super. 61, 62 (App. Div.),
certif. denied,
107 N.J. 53 (1986), anti-abortion demonstrators
picketed a private health-care facility located in an office
complex. The plaintiff was convicted of criminal trespass for
picketing on the premises, and we affirmed the conviction. Id.
at 62-63. We found that "[t]he tenants and their invitees [were
at the office complex] by specific invitation" and that the
general public was not invited to use, nor used, the property.
Id. at 65. Based on those facts, we determined that the premises
were not devoted to a "public use as that term is used in the
freedom of expression cases." Id. at 66. We, therefore, held
that an analysis of the three Schmid factors was not necessary,
but added that if the analysis were undertaken, the office
complex would not be considered public because it was "not the
functional equivalent of a suburban shopping center nor a place
to which a general consumer would go to shop for personal,
household or general business merchandise." Ibid. at 66. It had
no common area, and no places that contemplated the congregation
of people or the dissemination of literature. Ibid. In
affirming the conviction, we also found that "[t]he second of the
Schmid factors, the extent and nature of the invitation of the
public, also disfavors defendant." Ibid.
In New Jersey Coalition Against War in the Middle East v.
J.M.B.,
138 N.J. 326, (1994), cert. denied, 516_ U.S. 812_,
116 S. Ct. 62,
133 L. Ed.2d 25 (1995), a citizens group sued the
owners of private shopping malls to compel the owners to grant
access to the private properties to allow the group to engage in
leafletting. Under the Schmid test, the Court found a
constitutional obligation to permit the leafletting by plaintiffs
at certain regional and community shopping centers. Id. at 334.
Speaking through Chief Justice Wilentz, the majority concluded
that:
Although the ultimate purpose of these
shopping centers is commercial, their normal
use is all-embracing, almost without limit,
projecting a community image, serving as
their own communities, encompassing
practically all aspects of a downtown
business district, including expressive uses
and community events. We know of no private
property that more closely resembles public
property. The public's invitation to use the
property--the second factor of the [Schmid]
standard--is correspondingly broad, its all-inclusive scope suggested by the very few
restrictions on the invitation that are
claimed, but not advertized, by defendants.
...
As for the third factor of the standard--the relationship between the purposes of the
expressional activity and the use of the
property--the free speech sought to be
exercised, plaintiff's leafletting, is wholly
consonant with the use of these properties.
[Id. at 333-34.]
In Guttenberg Taxpayers and Rentpayers Ass'n. v. Galaxy
Towers,
296 N.J. Super. 101, 102 (App. Div. 1995), a political
association sought an injunction to prohibit a condominium
association from preventing it from distributing pamphlets on the
condominium association's property during a school board
election. Galaxy Towers was a private, residential property of
1,075 condominium units located in three high-rise buildings with
related common elements such as hallways, elevators, lobbies and
a parking garage. Id. at 103. The lobby and the garage were
guarded by security personnel. Ibid. Within the complex, there
was a shopping center known as the Galaxy Mall, which was owned
by a third party. Ibid. The mall was open to the public and
contained entrances to the Galaxy Towers. Ibid. However, the
public "[was] never invited into or permitted to enter Galaxy
Towers without permission." Ibid. No "canvassing or
solicitation," either by residents or outsiders, was permitted.
Ibid. The polling place for the residents of Galaxy Towers was
in the Galaxy Mall. Ibid. However, the condominium association
did, in its regular newsletter and in special notices and
bulletins, endorse candidates for local elective office. Id. at
104. We held that the Schmid test controlled, that "[t]he
required balancing of property rights and free speech rights
depend[ed] on a discreet consideration of the facts concerning
the use of the property, as well as the practices of the
condominium association with regard to its endorsement of
political candidates and issues, and other activities deemed
pertinent" and remanded for "a plenary hearing." Id. at 108.
On remand, the trial judge noted that to permit "public
access" there had to be "an initial determination that there is
some type of public dedication of the property." Guttenberg
Taxpayers and Rentpayers Ass'n,
297 N.J. Super. 404, 409 (Ch.
Div. 1996), aff'd,
297 N.J. Super. 309 (App. Div. 1996), certif.
denied,
149 N.J. 141 (1997). The judge found that Galaxy was
"routinely used for political campaigning," distribution of
"political leaflets and handbills [were] part of the normal,
everyday activities that occur on the property," and that the
residents "expect[ed] as a matter of course" that election
materials would be "placed under their doors." Id. at 409. The
judge also found that because the condominium had become
essentially a "`company town' ... in which political access
controlled by the Association [was] the only `game in town,' ...
[d]istribution of plaintiffs' literature in essentially the same
manner in which the Association's literature is distributed [was]
the only effective way plaintiffs [could] be guaranteed equal
access to the registered voters in Galaxy." Id. at 411.
Plaintiff argues that its claim is even stronger than that
of the plaintiffs in Galaxy because Ms. Mulligan, unlike the
plaintiffs in Galaxy, was a member of the community with which
she desired to communicate. However, the William G. Mulligan
Foundation, not Elinor Mulligan, is the plaintiff seeking to
place the advertisement, and its position ignores the three prong
test developed in Schmid and the fact that defendants have not
dedicated any part of their property to some public use.
Although The Panther accepts advertising from local businesses,
that invitation to the community does not constitute public use
of the premises similar to that in which our courts have upheld
the right of free speech on private property. Unlike Princeton
University, the Galaxy Mall, or any other shopping center, the
public is not permitted on any part of defendants' property. To
the contrary, it is a gated community with access only by
invitation.
In J.M.B., supra, the Supreme Court reiterated that:
In Schmid [supra,
84 N.J. 535,] we ruled
that our State Constitution conferred on our
citizens an affirmative right of free speech
that was protected not only from governmental
restraint--the extent of First Amendment
protection--but from the restraint of private
property owners as well. We noted that those
state constitutional protections are
"available against unreasonably restrictive
or oppressive conduct on the part of private
entities that have otherwise assumed a
constitutional obligation not to abridge the
individual exercise of such freedoms because
of the public use of their property." [84
N.J. at 560.] And we set forth the standard
to determine what public use will give rise
to that constitutional obligation. The
standard takes into account the normal use of
the property, the extent and nature of the
public's invitation to use it, and the
purpose of the expressional activity in
relation to both its private and public use.
This "multi-faceted" standard determines
whether private property owners "may be
required to permit, subject to suitable
restrictions, the reasonable exercise by
individuals of the constitutional freedoms of
speech and assembly." Id. at 563,
423 A.2d 615. That is to say, they determine whether,
taken together, the normal uses of the
property, the extent of the public's
invitation, and the purpose of free speech in
relation to the property's use result in a
suitability for free speech on the property
that on balance, is sufficiently compelling
to warrant limiting the private property
owner's right to exclude it; a suitability so
compelling as to be constitutionally
required.
[New Jersey Coalition v. J.M.B., supra, 138
N.J. at 333.]
Without considering the reasonableness of the restrictions or limitation defendants placed on plaintiff's "advertisement," we conclude that the normal uses of the property, the absence of invitation for public use, and the type of the speech involved
here do not compel us to limit defendants' rights as owners of
private property.See footnote 5
In so holding, we recognize another fundamental difference plaintiff tries to develop in order to distinguish this case from the controlling precedent. Plaintiff claims that because Ms. Mulligan is a member of defendants' private association, she has a state constitutional right to exercise her right of free speech in the newsletter of the association of which she is a member, and, independently, that defendants breached a fiduciary duty they owed to her. But, as the trial judge noted, plaintiff is not a member of the Association, and Ms. Mulligan is not the plaintiff. Moreover, plaintiff does not challenge the denial of its belated endeavor to add her as a plaintiff after summary judgment was entered. In any event, while the motion judge referred to Ms. Mulligan as an Association member in his opinion and later indicated that the result would not have been "any differen[t]" had Ms. Mulligan been added as a plaintiff, the record does not adequately develop the rights and obligations of membership in the Association and the relationship between the Association members and trustees.See footnote 6 Accordingly, we find it both
unnecessary and unwise to decide the interesting and difficult
question raised before us concerning Ms. Mulligan's individual
right to compel publication of the advertisement or, perhaps more
appropriately, a statement submitted by her personally.
The judgment is affirmed.
Footnote: 1Plaintiff does not contend that the matter was inappropriately considered on motion for summary judgment. See R. 4:6-2; R. 4:46. Footnote: 2In the absence of briefing, we do not consider the issue. But see, e.g., Branzburg v. Hayes, 408 U.S. 665, 704-05, 92 S. Ct. 2646, 2668-69, 33 L. Ed.2d 626, 653 (1972); Lovell v. City of Griffin, Ga., 303 U.S. 444, 450-52, 58 S. Ct. 666, 668-69, 82 L. Ed. 949, 952-54 (1938). Footnote: 3There is no dispute that the federal constitution gives no general right of free speech on private property. See New Jersey Coalition Against War in the Middle East v. J.M.B., 138 N.J. 326, 349 (1994), certif. denied, 516 U.S. 812, 116 S. Ct. 62, 133 L. Ed.2d 25 (1995). Plaintiff, therefore, does not challenge that part of Judge Harry Seybolt's comprehensive opinion dealing with the federal constitution. We also agree with his conclusion under the State Constitution. Footnote: 4Princeton did not have reasonable regulations governing such conduct in place at the time. Id. at 568-69. Footnote: 5As a result, we need not consider the impact of the fact that plaintiff's claim would require defendants to do something at a cost - print the advertisement - even though plaintiff is willing to offset the costs thereof. Footnote: 6Defendants attached the PVOA bylaws to a certification in the record, but there was no consideration of the "rights of membership" or the nature and obligations of the Association, its
Board of Trustees, Committees or officers other than the context of the plaintiff's constitutional rights. The trial court proceedings focused on the constitutional argument, and while plaintiff suggests before us that Ms. Mulligan's membership in defendant Association affects the balance under Schmid, plaintiff did not argue in the trial court (nor really argues before us) that the corporate charter or any specific bylaw has been violated.